STAY CLASS E

10 / 12 / 2020

As part of the Government’s recent changes to the planning system, significant amendments to the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”) were instituted in September 2020, including the introduction of a very broad ‘Class E’, combining business, commercial and services uses.

The changes were delivered without the level of consultation that might be expected for such a radical shake-up, resulting in a legal challenge.  That challenge failed on 17 November 2020, and so the changes are here to stay.  On the back of that news, and with the revised system having operated for over two months already, a refresher seems timely.  These are the changes:

  • The complete removal of Class A (which included shops, professional services, pubs, restaurants and takeaways) and Class D (which included the education and leisure uses such as cinemas and gyms).
  • The addition of the new Class E, grouping together a varied range of uses that were previously within Classes A1, A2, and A3 (shops, professional services and restaurants), Class B1 (offices, research and light industrial uses), parts of the old Class D1 (clinics, health centres, creches and day nurseries), and parts of the former Class D2 (gyms/indoor recreation uses).
  • The introduction of a new Class F.1 which is made up of a significant chunk of the old Class D1 uses of schools, training centres, museums, libraries and places of worship.
  • A new Class F.2, being the old Class D2 community halls, swimming pools, skating rinks and outdoor sports and recreation uses, plus certain small neighbourhood shops that were previously in Class A1.
  • The expansion of the list of sui generis uses to include the old A4 and A5 pub and takeaway uses, and the cinema, concert, bingo and dance hall uses that were previously part of Class D2.

The only use classes that remain untouched are Classes C1, C2, C2a, C3 and C4 (homes, hotels and residential institutions), and the B2 and B8 general industrial and storage and distribution uses.

Confused? Well, this neat guide produced by Lichfields puts it all in perspective.

The rationale behind the swift introduction of Class E was to help businesses in town centres that were already struggling economically before the pandemic by enabling them to adapt and diversify, thereby reinvigorating town centres and high streets.  Whilst controversial and not popular with all local planning authorities (“LPAs”), the new Class E will open up opportunities for many.

Whether the Government’s aims of keeping town centres as we know them alive will be achieved, or whether the changes will fundamentally alter their function, will only become apparent in time.  The inclusion of non-town centre uses in Class E such as light industrial uses and health centres seems more than necessary to achieve the aim of maintaining functioning and lively high streets, and the effects on other built up areas could also be substantial – the flexibility created by this relaxation of land use control will apply anywhere these uses might be located, for example industrial estates or business parks.

The extent of the changes cannot be underestimated.  Changes of use that previously would have comprised ‘development’ for the purposes of planning legislation suddenly became exempt from the need for planning permission.  Changes of use within specific use classes are not classed as ‘development’ and so are permitted automatically without the need for planning permission.

There is a distinction with permitted development rights and the two should not be confused.  Changes within a use class are not ‘permitted development’ and so they cannot be restricted by ‘Article 4 directions’ in the same way as permitted development rights for, say, a change of use from office to residential.  Additionally, whereas prior approval may be required before being able to enjoy some permitted development rights, it is never required for changes within a use class.

A significant narrowing of the remit of LPAs to control changes in the use of land has resulted, as they no longer have oversight of the shifting between certain uses which no longer constitute ‘development’ in planning terms.  A restaurant could change use to a creche and in turn to a bank, and shopping centre units could change to flexible work spaces, all without any requirement to obtain planning permission.

Property owners and developers do still need to take care that changes of use are not restricted by other means.  Planning permissions should be scrutinised first as they may contain conditions restricting the changes of use that the amendments to the Use Classes Order now permit.

Planning permission (and listed building consent if relevant) would still be required for associated operational development, and in that context it would be possible for LPAs to impose conditions or obligations in planning permissions and section 106 agreements restricting a change of use.  However, restrictions of that type would require proper justification and an LPAs ability to impose such controls is restricted by legislation and guidance.  The National Planning Policy Framework is clear that any such conditions may only be imposed “where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects”.  Any controlling obligations in section 106 agreements would need to be justified by reference to the tests in the CIL Regulations that would require them to be necessary to make the development acceptable in planning terms, to be directly related to the development, and to be fairly and reasonably related in scale and kind to it.

Controls can still be imposed by private arrangement as property owners are of course able to restrict changes of use by imposing restrictive use clauses in leases.  Existing and proposed lease restrictions should be scrutinised by tenants to assess the scope of the changes that they may have the benefit of in practice.

A further note of caution is there must be an existing lawful use in place before changing to another use within Class E.  Simply having planning permission for a certain use would not be sufficient in order to change to another use if the permitted use has not first been implemented.  Therefore, if you have a permission for a shop and wish to change its use within Class E to an office, the property must first have been used as a shop.

Finally, be aware that some transitional provisions apply so that:

  • any planning applications that were submitted prior to 1 September 2020 must be determined by the LPA as if the previous use class regime were in place; and
  • from 1 September 2020 to 31 July 2021, permitted development rights that allow a change of use without planning permission will continue to apply by reference to the use classes that existed in the Use Classes Order on 31 August 2020 (the day before the changes took effect).

Watch this space for new permitted development rights for a change of use from Class E.  The Government is already consulting on permitted changes to residential use which, subject to prior approval, would also apply to the likes of restaurants and indoor sports centres, with no size limits and in conservation areas to boot.

Key points:

  • Recent changes give much more flexibility to change use
  • However existing planning permission may restrict that flexibility
  • Remember to check the lease as well
  • A lawful use must be in place first before changing